FISA court releases disturbing opinion

On September 17, 2013, Judge Claire Eagan of the secret FISA court,
declassified an August 29 legal opinion responding to mounting public
concerns about transparency. (Here’s the scary part: No
telecommunications company has ever challenged the secretive [FISA]
Foreign Intelligence Surveillance court’s orders for bulk phone
records under the Patriot Act! — the court revealed.) On the one hand,
allowing the public and press to see the order—which approved mass
surveillance without individual suspicion—represents a significant
step forward from the prior practice of issuing sweeping judicial
orders eroding constitutional rights without any visibility to the
public, or even the rest of the federal judiciary.
On the other hand, the declassification of the court opinion
ultimately confirmed widespread fears that the court’s substantive
jurisprudence offends basic constitutional rights. (I’ve been ranting
about this for years!) The order predictably restates the government
position, without any checks and balances of the sort that courts were
created to impose. Indeed, the court’s reasoning is flatly
indefensible.
First, the court accepted a standard of “relevance” under Section 215
of the PATRIOT Act without any relationship to the normal meaning of
the term. In fact, the court’s interpretation of “relevance”
essentially removes it as a statutory constraint, enabling the
government to monitor the entire country, regardless of whether
individuals are suspected of any crime.
Civil libertarians found the FISA court judge’s reasoning alarming.
“It’s problematic because it means the government is allowed to
collect records merely in anticipation of investigations,” said
Patrick Toomey, a lawyer for the ACLU. Kurt Opsahl, a lawyer with the
Electronic Frontier Foundation, said: “There’s not much daylight
between what the government asserts and what the court
determines.” While Opsahl hailed the court for disclosing more
information about its inner workings, he said the ruling “shows the
trouble with having a one-sided court process, where the court is only
seeing arguments from one side and seems to adopt those arguments. It
seems like a failure of the adversarial process.”
The FISA court does not hear from any petitioner aside from the
government. Bills currently before Congress would create a privacy
advocate to push back against the government’s arguments before the
FISA court. Sheldon Snook, a spokesman for the FISA court, said the
September 17 disclosure marked the first time the secret court had
decided on its own to reveal information related to the NSA’s phone
records database.
Second, the court bizarrely analogized the Supreme Court’s 1979
acceptance of a pen register (able to track the phone numbers called
from a particular phone number) sought by police in response to a
robbery, on the one hand; to blanket dragnet surveillance operating
constantly across potentially millions of Americans unsuspected of any
particular crime, on the other.
(Beyond the disturbing acquiescence to executive fiat implicit in the
judicial ruling, other process problems remain: the FISA court still
hears only one side of every case, and while this opinion was
declassified, most others remain secret. Fortunately, several of the
many congressional proposals to restrict NSA powers would address the
composition of the FISA court and its transparency.
Unfortunately, fixing the FISA court is not nearly enough. Government
powers enabling dragnet surveillance must be substantively — and
dramatically — curtailed. On September 21, 2013, theNew York Times
endorsed the Surveillance State Repeal Act, introduced by Former House
intelligence committee chair Rush Holt (D-NJ) and championed by the
Bill of Rights Defense Committee since August. Alone among the various
pending congressional proposals, the Holt bill would repeal the entire
PATRIOT Act and 2008 FISA amendments, forcing the government to
justify its authorities from the pre-9/11 baseline, rather than
accepting the Bush administration’s illegal activities as legitimate.
While Congress moves to conduct long-overdue oversight and finally
enact affirmative restrictions on NSA spying, the international
community has also grown vocal. Protests in Germany over NSA spying
impacted national elections there, and Brazil’s president, Dilma
Rousseff, cancelled an official visit to Washington before going on to
propose a variety of measures to allow Brazilian Internet users to
evade the NSA dragnet. She also sharply criticized NSA abuses at the
United Nations on September 24, saying:
“Personal data of citizens was intercepted indiscriminately. Corporate
information — often of high economic and even strategic value — was at
the centre of espionage activity… Tampering in such a manner in the
affairs of other countries is a breach of international law and is an
affront of the principles that must guide the relations among them,
especially among friendly nations… The right to safety of citizens
of one country can never be guaranteed by violating fundamental human
rights of citizens of another country.”
Grassroots resistance to NSA spying is growing around the country, and
will continue until the agencies’ various abuses are ended once and
for all. (One would hope, but I’m a cynic!) A national coalition of
groups in the Stop Watching Us coalition, including BORDC (Bill of
Rights Defense Committee), will organize a rally near the capital in
Washington DC on October 26, 2013, and BORDC will continue working
with local grassroots coalitions to force a public debate on these
vital issues and ensure a meaningful government response.
I think it is scary, unconstitutional and one step away from
totalitarianism. With that being said, with the secrecy surrounding
these abuses and the power of the NSA and the general apathy of the
public, I think it is only going to get worse.
I believe the words of Martin Neimoller, a Protestant pastor and
social activist who lived in Germany, who was imprisoned by the Nazi
regime in 1937, and who stated the following in a sermon in January
1946, encapsulates my concerns eloquently:
First they came for the Jews, and I did not speak out because I was
not a Jew. Then they came for the Communists, and I did not speak out
because I was not a Communist. Then they came for the trade unionists,
and I did not speak out because I was not a trade unionist. Then they
came for me, and there was no one left to speak out for me.
Who will be left to speak for us?
Mace J. Yampolsky is a Board Certified Criminal Law Specialist, 625
South Sixth St., Las Vegas, NV 89101; He can be reached at: Phone
702-385-9777 or fax 702-385-300. His website is located at:www.macelaw.com

Mace J. Yampolsky is a Board Certified Criminal Law Specialist, 625 South Sixth St., Las Vegas, NV 89101; He can be reached at: Phone 702-385-9777 or fax 702-385-300. His website is located at: www.macelaw.com.